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International and Comparative Law Quarterly
c. Commencement and territorial extent
The Act will come into force on such day as the Secretary of State may by order
appoint.34 An Order was made on 14 October 2009, stating that section 1 of the Act
‘shall come into force on 5 April 2010.’35 The Third Additional Protocol will come
into force for the United Kingdom on 23 April 2010, being six months after deposit of
the instrument of ratification.36 This slight discrepancy in dates is normal UK practice:
by bringing the relevant domestic law into effect before the treaty is in force internationally, the UK is assured of meeting its international obligations. No order has yet
been made to bring into force section 2 of the Act which amends the United Nations
Personnel Act 1997.
Like the texts of the 1949 Geneva Conventions and their 1977 Additional Protocols,
the text of Additional Protocol III is inserted as a Schedule to the Geneva Conventions
Act 1957.37 Also like earlier Geneva Conventions Acts, the provisions of section 1 on
the emblem and the Schedule of the 2009 Act may be extended to the Channel Islands,
Isle of Man and British Overseas Territories.38 The provisions of the Act extend to the
whole of the UK. As far as Scotland is concerned, the Act relates only to reserved
matters.39
MICHAEL MEYER AND CHARLES GARRAWAY*
II. CLEARING THE FOG OF WAR? THE ICRC’S INTERPRETIVE
GUIDANCE ON DIRECT PARTICIPATION IN HOSTILITIES
I. INTRODUCTION
In the summer of 2009, the International Committee of the Red Cross (ICRC) published a document setting out its ‘Interpretive Guidance on the Notion of Direct
Participation in Hostilities under International Humanitarian Law.’1 The purpose of the
document is to help clarify and to assist in the interpretation of a principle that is
undoubtedly accepted in international humanitarian law (IHL) but which is subject to
much ambiguity. This is the principle that civilians are to be immune from direct
attacks by the parties to an armed conflict, unless the civilian takes a direct part in
hostilities. The principle is applicable in both international and non-international
34
S 3(1) of the Geneva Conventions and United Nations Personnel (Protocols) Act 2009.
The Geneva Conventions and United Nations Personnel (Protocols) Act 2009
(Commencement No. 1) Order 2009 (SI 2892/2009).
36
37
Art 11(2) of the Third Additional Protocol.
S 1(8).
38
S 3(3). A similar provision in s 3(4) also provides for the extension of s 2.
39
Geneva Conventions and United Nations Personnel (Protocols) Bill [HL], Explanatory
Notes, 17th December 2008, 1.
* Head of International Law and International Law Adviser (External), British Red Cross,
respectively. The views expressed are personal and do not necessarily reflect those of the British
Red Cross.
1
ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under
International Humanitarian Law (Geneva 2009) (‘Interpretive Guidance’), available at http://
www.icrc.org/web/eng/siteeng0.nsf/html/p0990?opendocument.
35
[ICLQ vol 59, January 2010 pp 180–192]
doi:10.1017/S0020589309990133
Current Developments
181
armed conflicts and is codified in article 51(3) of Additional Protocol I (1977)2 and
article 13(3) of Additional Protocol II3 (1977) to the Geneva Conventions (1949) both
of which state that: ‘Civilians shall enjoy the protection [from direct attack] . . . , unless
and for such time as they take a direct part in hostilities.’ The Israeli Supreme Court
held in the Targeted Killings case (2005) that this provision, in its entirety, reflects
customary international law.4
The principle regarding the immunity of civilians from attack, except in cases
of direct participation in hostilities, is a key component of the principle which
requires belligerents to distinguish between civilians and combatants (the principle
of distinction).5 The principle of distinction and notion of direct participation in
hostilities addresses the most fundamental question in wartime: who can be targeted
in an armed conflict? IHL will be unable to perform one of its primary purposes,
the protection of those who do not take part in conflict, unless it is relatively clear who
falls within the class of protected persons and who does not. Therefore an attempt
to clarify these principles is of great importance and should help in clearing the fog
of war.
Despite agreement on the principle that civilians who take a direct part in hostilities
are subject to direct attack by the adversary, there has been much difficulty in applying
it.6 Even the basic question of who is a civilian is one where answers have been
unclear—particularly in non-international armed conflicts.7 There is little guidance on
what the words ‘direct participation’ mean and little agreement on when a person is to
be considered as no longer taking a direct part in hostilities so that he again benefits
from civilian immunity. It is clear that a civilian who takes up arms and uses it offensively will be taking a direct part in hostilities. It is also certain that the concept of
direct participation extends beyond those who bear arms. But how far does the concept
of direct participation in hostilities extend beyond offensive violent acts? Does it extend to those who recruit and direct the acts of those who engage in violent acts? And
2
First Additional Protocol to the Geneva Conventions of 12 August 1949, and Relative to the
Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7
Dec 1979) 1125 UNTS 3 [Additional Protocol I].
3
Second Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to
the Protection Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into
force 7 Dec 1979) 1125 UNTS 3 [Additional Protocol II].
4
See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
5
Art 51(2) Additional Protocol I.
Israel, HCJ 769/02 (13 Dec 2006) para 30.
6
See, for example, M Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed
Conflict’ in H Fischer et al (eds), Crisis Management and Humanitarian Protection: Festschrift
fur Dieter Fleck (BWV, Berlin, 2004); JR Heaton, ‘Civilians at War: Re-examining the Status of
Civilians Accompanying the Armed Forces’ (2005) 57 Air Force Law Review 155; O Ben-Naftali
and KR Michaeli, ‘We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli
Policy of Targeted Killings’ (2003) 36 Cornell International Law Journal 233; RS Schondorf,
‘Are “Targeted Killings” Unlawful? The Israeli Supreme Court’s Response: A Preliminary
Assessment’ (2007) 5 Journal of International Criminal Justice 2, 301; Harvard University
Program on Humanitarian Policy and Conflict Research, Policy Brief, ‘IHL and Civilian
Participation in the Hostilities in the OPT’ (2007) available at <http://hpcrresearch.org/pdfs/
ParticipationBrief.pdf>; R Lyall ‘Voluntary Human Shields, Direct Participation in Hostilities
and the International Humanitarian Law Obligations of States’ (2008) 9 Melbourne Journal of
International Law 2, 313.
7
See M Bothe, ‘Direct Participation in Hostilities in Non-International Armed Conflict’,
Expert paper submitted to the Second Expert Meeting on the Notion of Direct Participation in
Hostilities (The Hague, 2004).
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International and Comparative Law Quarterly
does it extend as far as those who provide intelligence or financial or logistical support
to persons who bear arms? These questions have assumed increased importance in
recent years because of the changing nature of armed conflict, and in particular, the
increasing involvement of civilians in armed conflict. These changes result partly from
the increase in asymmetric conflicts with non-State actors but also from the increased
use of civilians (eg private contractors) even by States in the general war effort.8 This
trend makes it essential that the questions regarding when civilians may be targeted in
war are clarified.
The ICRC has worked on its Interpretive Guidance for a number of years and
convened a series expert meetings in the course of its work.9 However, the final
document is not intended to reflect the view of the experts, who all contributed to the
process in their individual capacities.10 Rather, this document sets out the official
views of the ICRC on the topic. Prior to this ICRC document, some guidance on the
notion of direct participation in hostilities (or DPH) was to be found in the ICRC
Commentary on Additional Protocol I11 and in the Targeted Killings case (2005) of the
Israeli Supreme Court.12
The ICRC’s interpretive guidance attempts to answer 3 questions:13
. Who is considered a civilian for the purposes of the principle of distinction?
. What conduct amounts to direct participation in hostilities?
. What modalities govern the loss of protection against direct attack? [In short when is
a person considered as no longer taking a direct part in hostilities, how is that
determined and what are the consequences?]
8
See, for example, ME Guillory, ‘Civilianizing the Force: Is the United States Crossing the
Rubicon?’ (2001) 51 Air Force Law Review 111; A Faite, ‘Involvement of Private Contractors in
Armed Conflict: Implications under International Humanitarian Law’ (2004) 4 Defence Studies 2,
166, 174; M Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private
Contractors or Civilian Employees’ (2004–2005) 5 Chicago Journal of International Law 511;
E-C Gillard, ‘Business Goes to War: Private Military/Security Companies and International
Humanitarian Law’ (2006) 88 (863) International Review of the Red Cross 525; L Doswald-Beck,
‘Private Military Companies under International Humanitarian Law’ in S Chesterman and
C Lehnardt (eds), From Mercenaries to Market: The Rise and Regulation of Private Military
Companies (OUP, Oxford, 2007); M Sossai, ‘Status of Private Military Companies in the Law of
War: The Question of Direct Participation in Hostilities’ (European University Institute Working
Paper 2009/6); R de Nevers, ‘Private Security Companies and the Laws of War’ (2009) 40
Security Dialogue 2,169.
9
See ICRC, Summary Report: First Expert Meeting on the Notion of Direct Participation in
Hostilities (The Hague 2003); ICRC, Summary Report: Second Expert Meeting on the Notion of
Direct Participation in Hostilities (The Hague 2004); ICRC, Summary Report: Third Expert
Meeting on the Notion of Direct Participation in Hostilities (Geneva 2005); ICRC, Summary
Report: Fourth Expert Meeting on the Notion of Direct Participation in Hostilities (Geneva
2006); ICRC, Summary Report: Fifth Expert Meeting on the Notion of Direct Participation in
Hostilities (Geneva 2008), all available at <http://www.icrc.org/web/eng/siteeng0.nsf/html/
10
See ICRC, Interpretive Guidance, 6.
direct-participation-article-020709>.
11
See Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Geneva, 1987)
paras 1942–1945.
12
Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006).
13
See ICRC, Interpretive Guidance, 12–13.
Current Developments
183
II. WHO IS A CIVILIAN AND THUS PRIMA FACIE IMMUNE FROM ATTACK?
At first glance, the question who is a civilian for the purposes of the principle of
distinction (and the law relating to targeting) is relatively clear with regard to international armed conflicts but is uncertain in the case of non-international armed conflicts. This is because Additional Protocol I provides a definition of the term for the
purposes of international armed conflicts. According to article 50(1) of Additional
Protocol I (API), which applies to international armed conflicts, a civilian is ‘any
person who does not belong to one of the categories of persons referred to in article
4A(1), (2), (3) and (6) of the Third Convention and in article 43 of this Protocol. In case
of doubt whether a person is a civilian, that person shall be considered to be a civilian.’14 However, although Part IV of Additional Protocol II15 (dealing with noninternational armed conflicts) uses the term “civilian”16 it does not provide a definition.
In the Interpretive Guidance, the ICRC provides different definitions of the concept of
civilian for international and non-international armed conflict. According to the
Interpretative Guidance:
I. The concept of civilian in international armed conflict: For the purposes of the
principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are
civilians and, therefore, entitled to protection against direct attack unless and for such time
as they take a direct part in hostilities.
II. The concept of civilian in non-international armed conflict: For the purposes of the
principle of distinction in non-international armed conflict, all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians
and, therefore, entitled to protection against direct attack unless and for such time as they
take a direct part in hostilities. In non-international armed conflict, organized armed groups
constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous function it is to take a direct part in hostilities (‘continuous
combat function’).
The ICRC’s definition of ‘civilian’ in international armed conflicts is based on article
50(1) of Additional Protocol I. However, questions remain as to the comprehensiveness of the definition provided in both article 50 and in the ICRC’s Interpretive
Guidance. These questions relate primarily to the status of irregular forces in international armed conflicts and are discussed in Section A below.
A. The Status of Irregular Forces in International Armed Conflicts
In the commentary to the Interpretive Guidance,17 the ICRC makes the important point
that members of irregular groups that belong to a State that is a party to an armed
conflict but who do not fulfil the conditions in article 4(A)(2) of the Third Geneva
Convention (GCIII) for prisoner of war status18 will nevertheless be members of the
14
See art 50(1) Additional Protocol I.
Second Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered
into force 7 Dec 1987) 1125 UNTS 609.
16
See arts 13–18, Additional Protocol II.
17
ICRC, Interpretive Guidance, 21–23.
18
Under art 4(A)(2) of GCIII, members of irregular groups which belong to a State will be
entitled to prisoner of war status, only if the fulfil the following conditions: (a) that of being
15
184
International and Comparative Law Quarterly
armed forces of the State and are therefore not civilians for the law relating to the
conduct of hostilities. A cursory reading of article 50 in combination with article 4 of
GCIII might lead to the conclusion that such persons are civilians given that they fall
outside the categories listed in article 50. However, it must be remembered that article
4 of GCIII was not drafted for the purpose of the law relating to targeting or the
conduct of hostilities. That provision addresses itself to prisoner of war status and
issues relating to internment and detention of combatants. There is a distinction between the rules relating to the targeting, rules relating to detention and those relating to
prosecution.19 A person may be classified differently depending on the purposes for
which classification is being made. A member of an organized armed group that belongs to a State who falls outside the scope of application of GCIII will fall within the
scope of the Fourth Convention (which is titled as the Convention Relative to the
Protection of Civilian Persons in Time of War—GCIV).20 However, the protections
accorded such a person under that latter Convention deal mainly with fundamental
rules of humane treatment as well as rules relating to internment. Coming within the
scope of the Fourth Convention does not necessarily mean that a person is not to be
regarded as a combatant for the purposes of the conduct of hostilities. One would
suspect that State practice bears this out and that States do not consider themselves to
be more restricted when it comes to targeting irregular groups that belong to a State but
which do not comply with article 4(A)(2) of GCIII. Indeed, it would be a very odd
situation, if members of irregular groups that do not comply with the rules of international law concerning distinction, or with the laws and customs of more generally,
thereby gain additional protections from targeting because they are now regarded as
civilians for the purpose of the law relating to the conduct of hostilities.
In any case, the category of persons being discussed (irregulars who are part of
groups that belong to a State but who do not meet the conditions in article 4(A)(2) of
GCIII) would be part of the armed forces of a State under article 43 of AP I and
therefore would not be civilians under article 50(1). Article 43 defines the armed forces
of a party as consisting ‘of all organized armed forces, groups and units which are
under a command responsible to that Party for the conduct or its subordinates, even if
that Party is represented by a government or an authority not recognized by an adverse
Party.’It is recognized that this definition applies not only to regular forces but also to
irregular forces which belong to a State.21 Moreover, although there is controversy
commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign
recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations
in accordance with the laws and customs of war.
19
R Goodman, ‘The Detention of Civilians in Armed Conflict’ (2009) 103 AJIL 48;
D Akande, ‘The Obama Administration’s Interpretation of the Authority to Detain at
Guantanamo: Some Areas of Progress’ EJIL: Talk! (18 March 2009) available at <http://www.
ejiltalk.org/the-obama-administrations-interpretation-of-the-authority-to-detain-at-guantanamosome-areas-of-progress/>.
20
See K Dörmann, ‘Legal Situation of “Unlawful/Unprivileged Combatants” ’ (2003) 849
International Review of the Red Cross 45. However, it should be noted that art 5 of GCIV permits
belligerent States to restrict some of the protections accorded by the Convention where this is
necessary for reasons of security.
21
See Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC Geneva
1987) paras 1659–1674; M Bothe, KJ Partsch and WA Solf, New Rules for Victims of Armed
Current Developments
185
regarding the customary law status of Art. 44 of Additional Protocol I, article 43 is
generally agreed to represent customary international law.22
What is left unclear in the ICRC interpretive guidance is the position of irregular
forces that take part in an international armed conflict (or a conflict to which the rules
of international armed conflict apply) but which do not belong to a State. Irregulars
taking part in an international armed conflict would not belong to a State in cases where
there is no command link between the irregular group and a State that is engaged in an
armed conflict. Also, irregular groups would not belong to a State where only one of
the sides that is engaged in the actual fighting in an armed conflict is a State though the
conflict is still classified as an international armed conflict. For example, when there
are hostilities in the occupied Palestinian territories, the conflict is widely regarded as
international,23 however Israel is the only State involved in the conflict and it is not
thought that the Palestinian groups engaged in the conflict belong to another State.
Also, it is probably the case that where a State engages in hostilities with a non-State
group on the territory of another State but without the consent of that latter, there is an
international armed conflict.24 In these sorts of cases, the ICRC’s definition of civilian
in international armed conflicts would lead to the conclusion that members of these
groups are not civilians. When this is combined with the narrow definition of direct
participation in hostilities adopted by the ICRC in the Interpretive Guidance, the result
is unsatisfactory. It might mean that in the sort of cases covered by this scenario the
entire group of fighters on one side are to be regarded as civilians25 with limited rights
for the State to target such civilians.
Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949
(Martinus Nijhoff, The Hague, 1982), 234.
22
See J-M Henckaerts and L Doswald-Beck, Customary International Humanitarian Law:
Volume I:Rules (Cambridge University Press, Cambridge, 2005) Rule 4, 16.
23
See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006), para 21: ‘Our starting point is that the law that applies to the
armed conflict between Israel and the terrorist organizations in the area is the international law
dealing with armed conflicts.’ See also Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory (Advisory Opinion) ICJ Rep 2004, paras 89–101; Report of the
United Nations Fact Finding Mission on the Gaza Conflict, Human Rights in Palestine and Other
Occupied Arab Territories, UN Doc A/HRC/12/48 (15 Sep 2009), paras 270–285.
24
In support of this view is the Case Concerning Armed Activities on the Territory of the
Congo (Dem. Rep. Congo v Uganda) (2005) ICJ Rep paras 217–220, where the Court applies the
international humanitarian law relating to international armed conflict to the action of Ugandan
forces in the DRC (and not just in relation to occupied territory). Some authors and the US
government have taken the view that the type of conflict under consideration is a non-international armed conflict. However, such a view ignores the fact that a use of force by one State on
the territory of another State, without the consent of the latter, is a use of force against that latter
State under the jus ad bellum, even if the purpose of the use of force is to engage non-State forces.
See Armed Activities case (2005) ICJ Rep paras 149 & 153. An international armed conflict arises
whenever there is a resort to force between States (Prosecutor v Tadic, Merits Appeal Judgment,
para 84, July 15, 1999 (1999) 28 ILM 1518), however, this does not mean that both States must
actually use force. It is sufficient if one State uses force against another State. In support of the
view expressed here regarding the international status of certain conflicts involving the transnational use of force against non-State groups, see P Alston, J Morgan-Foster and W Abresch,
‘The Competence of the UN Human Rights Council and its Special Procedures in relation to
Armed Conflicts: Extrajudicial Executions in the ‘“War on Terror”’ (2008) 19 EJIL 1, 183.
25
See D Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or
Legitimate Means of Defence?’ (2005) 16 EJIL 2, 171.
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International and Comparative Law Quarterly
In these exceptional cases where the armed group does not belong to a State it is
better to use the definition of civilian adopted by the ICRC Interpretive Guidance with
respect to non-international armed conflicts. This would mean that any member of such
a group with a continuous combat function would be not be regarded as a civilian.
However, the problem with the solution just suggested is that it would deviate from
article 50(1) of the Geneva Conventions since the category of fighters now under
consideration would not fall under article 4 of GCIII or article 43 of GCIV and would
therefore be civilians under that provision.
B. The Status of Non-State Groups in Non-International Armed Conflicts
With regard to non-international armed conflicts, the ICRC makes a distinction between members of the armed forces of a State and of the armed forces of non-State
groups. Only those who assume a continuous combat function are said to be members
of organized armed forces of a non-State party. One possible criticism of this distinction is that it creates a lack of equality between the State and non-State forces. Any
member of the armed forces of a State (with the exception of medical and religious
personnel)26 is a legitimate target at all times, including the cook, the cleaner, the
lawyer and others without a combat function.27 However, on the ICRC’s approach for
non-State forces in non-international armed conflicts, individuals who do not have a
continuous combat function will be civilians. They are therefore immune from direct
attack unless they engage in a specific act which amounts to direct participation in
hostilities, and only for such time.
An alternative approach might simply have been to provide that any member of an
organized armed group is not a civilian and then try to define what membership
means.28 However, one problem with this approach would be how one defines the
organized armed group. Does organised armed group refer to the broad organization
involved in the fight (eg Hamas, Hezbollah, the IRA?) or merely to the fighting wing of
the group? The ICRC is clearly trying to confine the definition to the fighting wing but
the difficulty is how one defines that wing when there will likely be few formal indicia
to define the fighting wing. So rather than have two definitional problems—(i) defining
the armed group and (ii) defining membership—it is easier to focus simply on the
membership question (which is itself very difficult) and to let that define the group.
Anyone who continuously takes a direct part in hostilities is clearly a part of the
fighting wing of the group. Beyond that, with groups who don’t wear uniforms or have
other external indicia of membership, it will be difficult to know if other persons (who
do not have a continuous combat function) are parts of the armed/fighting wing of a
broader group. Thus, the ICRC have taken a pragmatic approach rather than one dictated by logic. But that is not a bad thing. This is particularly so, since persons who do
26
Medical Personnel and Religious personnel who are members of the armed forces are not
subject to attack. See in D Fleck (ed), The Handbook of International Humanitarian Law (2nd edn,
OUP, Oxford, 2008) ·610, ·818.
27
See K Ipsen, ‘Combatants and Non-Combatants’ in D Fleck (ed), The Handbook of
International Humanitarian Law ( 2nd edn, OUP, Oxford, 2008), ·314, 99.
28
See Y Dinstein, C Garraway & M Schmitt, The Manual on the Law of Non-International
Armed Conflict: With Commentary (International Institute of Humanitarian Law, San Remo,
2006), reprinted in 36 Israel Yearbook on Human Rights (2006) ·1.1.2 which adopts a membership approach but does not define membership.
Current Developments
187
not have a continuous combat function can still be targeted in instances where they
take a direct part in hostilities, and can be detained for violating domestic or international law.
III. WHAT CONSTITUTES DIRECT PARTICIPATION IN HOSTILITIES?
The key part of the ICRC’s Interpretive Guidance is the attempt to define direct participation. The relevant principles are set out as follows:
V. Constitutive elements of direct participation in hostilities: In order to qualify as
direct participation in hostilities, a specific act must meet the following cumulative criteria:
1. The act must be likely to adversely affect the military operations or military capacity of
a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on
persons or objects protected against direct attack (threshold of harm), and
2. There must be a direct causal link between the act and the harm likely to result either
from that act, or from a coordinated military operation of which that act constitutes an
integral part (direct causation), and
3. The act must be specifically designed to directly cause the required threshold of harm in
support of a party to the conflict and to the detriment of another (belligerent nexus).
In essence, direct participation is defined as engaging in an act or taking part in a
military operation which directly causes, and is intended to cause, harm to the military
of the adversary or to protected persons or objects. The first constitutive element of this
definition—threshold of harm—goes beyond the Commentary on Additional Protocol I
which had defined direct participation overly narrowly. That commentary stated that
‘direct’ participation means acts of war which by their nature or purpose are likely to
cause actual harm to the personnel and equipment of the enemy armed forces.29
However, as the Israeli Supreme Court correctly noted in the Targeted Killings case
this was too narrow30 as it appears to exclude acts intended to cause damage to civilians (eg suicide bombings) and such acts should be regarded as hostile acts.
The second element—direct causation—is really the key principle in this area. To
lose protection, civilians may either engage in acts which directly cause harm or engage in an operation which directly causes harm. In the commentary to the Interpretive
Guidance, the ICRC states that:
In the present context, direct causation should be understood as meaning that the harm in
question must be brought about in one causal step. Therefore, individual conduct that
merely builds up or maintains the capacity of a party to harm its adversary, or which
otherwise only indirectly causes harm, is excluded from the concept of direct participation
in hostilities. For example, imposing a regime of economic sanctions on a party to an
armed conflict, depriving it of financial assets, or providing its adversary with supplies and
services (such as electricity, fuel, construction material, finances and financial services)
would have a potentially important, but still indirect, impact on the military capacity or
operations of that party. Other examples of indirect participation include scientific research
and design, as well as production and transport of weapons and equipment unless carried
out as an integral part of a specific military operation designed to directly cause the required threshold of harm. Likewise, although the recruitment and training of personnel is
crucial to the military capacity of a party to the conflict, the causal link with the harm
29
Y Sandoz, C Swinarski and B Zimmermann (eds), Commentary to the Additional Protocols
of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC, Geneva, 1987) para 1944.
30
Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006) para 33.
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International and Comparative Law Quarterly
inflicted on the adversary will generally remain indirect. Only where persons are specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and, therefore, as direct participation in
hostilities.31
The ICRC has taken a narrow view of the scope of direct participation. In my view, this
is right approach to take. A narrow interpretation is suggested by the text and structure
of the provisions which deal with direct participation in hostilities. The text of the
relevant provisions speak not of participation in armed conflict but of participation in
hostilities, something narrower than being involved in the conflict in general.
Participation in hostilities suggests participation in military operations. Furthermore,
participation must be ‘direct’. So not all participation in military operations means loss
of protection from attack. A narrow view is also suggested by the purpose of the rule
limiting the targeting of civilians to those who take a direct part in hostilities. There is a
distinction to be made between acts of participation in hostilities and acts which generally sustain the war effort. This is a crucial distinction as it may be the case that much
activity in a state in armed conflict may go towards sustaining the war effort. To permit
anyone who is involved in the war sustaining effort to be a target of lethal weapons is to
allow for unrestricted warfare—practically everyone could be a target. This would be a
regressive move.32
In general, the ICRC approach on what constitutes taking a direct part is similar to
the approach taken, on this question, by the Israeli Supreme Court in the Targeted
Killings case.33 Both seem to come to the same conclusions with regard to examples
given (perhaps with the exception of voluntary human shields).34 However, the main
contribution of the ICRC’s work is that it provides the analytical tools by which to
reach those answers. The key tool here being the requirement that harm that results (or
is intended to result) from an act must be brought about within one causal step of the
act (or the operation of which the act forms a part).
IV. LOSS OF PROTECTION—REJECTING THE CONTINUOUS DIRECT PARTICIPATION APPROACH?
It is to be recalled that article 51(3) of AP I states that civilians lose protection from
direct attack only ‘for such time’ as they take a direct part in hostilities. In the Targeted
Killings case, the Israeli Supreme Court dismissed the argument of the Israeli
government (and a view shared by the US35) that the ‘for such time’ part of the
31
ICRC, Interpretive Guidance, 52–53.
On this analysis, the recent practice by the US and NATO of targeting Afghan drug traffickers with links to the Taleban fails to respect the direct participation in hostilities principle: see
D Akande, ‘US/NATO Targeting of Afghan Drug Traffickers: An Illegal and Dangerous
Precedent?’ EJIL: Talk! (13 Sept. 2009), available at <http://www.ejiltalk.org/index.php>.
33
Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006) [Targeted Killings case], paras 34–37.
34
The ICRC takes the view that only those voluntary human shields who create a physical
obstacle to military operations directly cause the threshold of harm required for direct participation in hostilities [ICRC, Interpretive Guidance, 56–57] while the Israeli Supreme Court seems
to assume that all voluntary human shields take a direct part in hostilities. Israeli SC [Targeted
Killings case, para 36].
35
See J Bellinger, ‘Unlawful Enemy Combatants’ Opinio Juris blog (17 Jan 2007) available at
<http://opiniojuris.org/2007/01/17/unlawful-enemy-combatants>.
32
Current Developments
189
provision does not reflect customary international law.36 This leads to the question
when direct participation ceases.
In keeping with the narrow approach to direct participation, the ICRC takes the view
that loss of protection from attack only arises for so long as the civilian is engaged in
the specific act which amounts to direct participation. The relevant part of the
Interpretive Guidance states:
VII. Temporal Scope of Loss of Protection: Civilians lose protection against direct
attack for the duration of each specific act amounting to direct participation in hostilities,
whereas members of organized armed groups belonging to a non-State party to an armed
conflict cease to be civilians (see above II), and lose protection against direct attack, for as
long as they assume their continuous combat function.
This suggests that the ICRC rejects the notion of continuous direct participation.37 This
is the idea that a person who takes a direct part in hostilities remains a valid target until
he opts out of the hostilities through extended non-participation. On this view, such a
person is always subject to attack even in the periods when not specifically engaging in
the hostile act. This view is contrary to the narrow notion of direct participation in
hostilities adopted by the ICRC. However, the ICRC was willing to broaden slightly
the notion of the specific act which constitutes taking a direct part in hostilities.
It stated that:
VI. Beginning and End of Direct Participation in Hostilities: Measures preparatory to
the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that
act.38
The ICRC’s apparent rejection of the notion of continuous direct participation does
not, in most cases, change the results one would arrive at if one adopted a continuous
direct participation analysis. In most cases, adopting either the ICRC approach or the
continuous direct participation approach would probably mean that a person who takes
part in a series of hostile acts would lose immunity from targeting, even beyond the
specific occasions when he acts. All that is changed is the category into which the
person falls. This is because, on the ICRC’s analysis, the person would probably be
classified as a member of an organized armed group and thus subject to direct attack for
so long as he is a member. Recall that membership in such group is defined as a person
who assumes a continuous combat function. So applying, the ICRC analysis one would
arrive at the same conclusion as the Israeli Supreme Court when it said:
On the other hand, a civilian who has joined a terrorist organization which has become his
‘home’, and in the framework of his role in that organization he commits a chain of
hostilities, with short periods of rest between them, loses his immunity from attack ‘for
such time’ as he is committing the chain of acts. Indeed, regarding such a civilian, the rest
between hostilities is nothing other than preparation for the next hostility.39
36
See Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006) paras 12, 30.
37
See M Schmitt, ‘Direct Participation in Hostilities and 21st Century Armed Conflict’ in H
Fischer et al (eds), Crisis Management and Humanitarian Protection: Festschrift fur Dieter Fleck
38
ICRC, Interpretive Guidance, 65–68.
(BWV, Berlin 2004), 509–510.
39
Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
Israel, HCJ 769/02 (13 Dec 2006) para 39.
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International and Comparative Law Quarterly
The only difference is that on the ICRC’s analysis, if the person is involved in a noninternational armed conflict, that person would not be a civilian taking a direct part in
hostilities but rather a member of an organized armed group—which would mean the
person is a legitimate target at all times.
However, there are some situations in which there would be a difference between
the continuous direct participation approach and the ICRC approach. Firstly, there
would be a difference (in the case of international and non-international armed conflicts) when the person concerned is not a member of an armed group but, rather, acts
independently. Secondly, there would be a difference in the case of an international
armed conflict where the group involved in the fight does not belong to a party to the
conflict, as explained above.40 In both cases, a continuous direct participation approach
would mean that the person concerned is subject to attack at all times, even in ‘periods
of rest’. However, analysis under the ICRC Interpretive Guidance would lead to the
view that the person concerned is a civilian and is not continuously subject to attack but
only when he acts.
In the first situation highlighted above, the narrow approach to direct participation
by the ICRC Interpretive Guidance is more in keeping with the spirit of the direct
participation rule. The purpose of the rule is to ensure that civilians are only targeted
when they pose an immediate danger to military forces and the civilian population.
When the danger is not immediate, belligerent parties are obliged to seek other means
of combating the threat posed by civilians. One danger of the continuous direct participation approach is that it increases the possibility of error given that a person can be
targeted at moments when not involved in hostile acts. Such an approach to targeting
raises the question how the belligerent can be confident that individual poses a significant danger and will return to the fight. In the case of a person who is a member of
an armed group and whose function is to fight, membership of the group and assumption of a fighting capacity within the group is itself an indication of the dangers
posed by the individual. Where the person is not a member of a group dedicated to
fighting, one ought to be much more careful in deciding to target the person with lethal
force and should do so only when unavoidable, ie when the person engages in an act
which will itself cause harm. However, taking a membership approach to the definition
of who is not a civilian does not eliminate the difficulty that belligerents will face.
Determinations, often difficult ones, will be faced in making the assessment as to
whether a person is a member of the armed group with a continuous combat function.
The best indication of such membership would of course be past conduct but there
must be scope for parties to the conflict to make the assessment that persons who
have not performed such acts in the past have nevertheless taken up membership and
have assumed a combat function. If this were not so, it might be impossible to target
persons tasked with one-off missions (eg suicide bombers) before they undertake that
mission.
In the case of members of armed groups who do not belong to the State but who
participate in an international armed conflict, the second situation above, the suggestion made earlier41 is that it is better to use the definition of civilian that the ICRC
adopts for non-international armed conflicts. In such cases, the persons ought not to
be regarded as civilians simply because their group has failed to subject itself to the
40
See Section II.A above.
41
ibid.
Current Developments
191
State. These persons should also be regarded as having lost their immunity from attack
as they pose exactly the same dangers.
V. DOES IHL REQUIRE A CAPTURE RATHER THAN KILL APPROACH?
What will probably be the most controversial aspect of the ICRC’s approach in the
Interpretive Guidance is the penultimate principle:
IX. Restraints on the use of force in direct attack: In addition to the restraints imposed
by international humanitarian law on specific means and methods of warfare, and without
prejudice to further restrictions that may arise under other applicable branches of international law, the kind and degree of force which is permissible against persons not entitled
to protection against direct attack must not exceed what is actually necessary to accomplish
a legitimate military purpose in the prevailing circumstances.
This principle suggests that even if one reaches the conclusion that a person is one of
those that IHL says may be targeted, a party to a conflict must as a general matter
consider whether it is necessary to do so. In other words, where it is possible to disable
the threat from that person by several means, the party to the conflict should use the
least harmful means can be employed taking the circumstances into account. This
principle is said to be based on a general principle of military necessity which stipulates that belligerent parties can only take such action as is necessary to overcome the
other party, even if the proposed action is not prohibited by principles of IHL.42 So if a
person can be captured rather than killed, there is an obligation to do so even in cases
where the person is not a civilian or where he is a civilian taking a direct part in
hostilities.
This view of the law finds support in the Targeted Killings case.43 However, it is not
certain that that Court was seeking to apply principles of IHL in this part of the
decision. The court cited the ECHR’s decision in McCann v United Kingdom44 and it is
therefore likely that this least harmful means approach was an importation from human
rights law.45 The argument that IHL does take this approach is made by the author of
the ICRC’s Interpretive Guidance, Dr Nils Melzer in his monograph.46 In Melzer’s
view, the principle of military necessity not only has a permissive function but also has
a restrictive function. In his view, this restrictive function is a general principle which
underlies all of IHL and which means that even when specific principles of IHL do not
forbid action that action is forbidden where not justified by military necessity. Thus
military necessity acts as an additional level of restraint on belligerents in addition to
specific rules of IHL.
There is some support for this general view of military necessity in military manuals.47 However, there seems to be no practice of States in which it is contended that
42
ICRC, Interpretive Guidance, 78–82.
Public Committee Against Torture in Israel v Government of Israel, Supreme Court of
44
(1995) 21 EHRR 97.
Israel, HCJ 769/02 (13 Dec 2006) para 40.
45
Harvard University Program on Humanitarian Policy and Conflict Research, Policy
Brief ‘IHL and Civilian Participation in the Hostilities in the OPT’ (2007, available at http://
hpcrresearch.org/pdfs/ParticipationBrief.pdf, 12.
46
N Melzer, Targeted Killing in International Law (Oxford University Press, Oxford, 2008)
278 ff.
47
See, for example, C Greenwood, ‘Historical Development and Legal Basis’ in D Fleck, The
Handbook of Humanitarian Law in Armed Conflicts (2nd edn, OUP, Oxford, 2008) ·131 & 38;
43
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International and Comparative Law Quarterly
the targeting of individuals who are members of armed forces or civilians taking a
direct part in hostilities are nevertheless unlawful because such targeting was not
necessary in the particular case. Given that there is a principle which specifically
prohibits the use of weapons which cause unnecessary suffering to combatants48 it
appears strange that no specific principle has emerged prohibited unnecessary targeting
if the view is taken that the general doctrine of military necessity leads to such a
conclusion. What is strange that is that the general doctrine of military necessity has
led to the development of a specific principle with regard to weaponry and suffering
caused by weaponry but States have refrained from elucidating a specific principle
about the act of targeting of combatants when such targeting is not necessary. It would
seem that this silence is not accidental. In the context of targeting of persons, the view
may be taken that IHL has already made the calculation as to what is necessary from
the military perspective. In other words, the view may be taken that IHL has already
determined the range of persons against whom lethal force may be used and this
determination is already based on ground of military necessity. Therefore, no further
and more specific restraints exist with regard to who is subject to lethal force.
Application of a more specific capture rather than kill approach may be difficult to
apply given that those engaged in the conduct of hostilities may not be in a position to
know that it is possible to disable a threat by capturing rather than by killing. In the
more traditional battlefield situations, soldiers may not be aware that if they refrain
from targeting members of the opposing force in their sight, it would be possible
(perhaps even easier) for colleagues placed elsewhere to capture those opposing belligerents.
VI. CONCLUSION
All in all, the main contribution of the ICRC in this area is to provide analytical tools in
an area where they have long been lacking. There has long been broad agreement on
the verbal expression of the key principles here and even agreement on how the principles may play out in particular cases. What we have lacked is how we get from the
former to the latter. Lacking that roadmap we lose our way when we try to get other
results where instinct alone does not help us. Now we have some tools for doing so.
DAPO AKANDE*
United Kingdom Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford
University Press, Oxford, 2004) 21–22; United States Department of the Navy, Commander’s
Handbook on the Law of Naval Operations (Office of the Chief of Naval Operations, Washington
DC, 1989) ·5.3.1; Instructions for the Government of Armies of the United States in the Field
(Lieber Code) 24 April 1863, art 14.
48
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 8 July 1996, ICJ Rep
1996, 226, para 78.
* University Lecturer in Public International Law & Yamani Fellow, St Peter’s College,
University of Oxford; Co-Director, Oxford Institute for Ethics, Law and Armed Conflict. I am
grateful to Hannah Tonkin for assistance with this piece.